BRIEF FOR APPELLANT: Jason Scott Kincer London, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 17-CR-00139 OPINION
REVERSING AND REMANDING
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BEFORE: JONES, KRAMER, AND MAZE, JUDGES. MAZE, JUDGE: A Laurel County jury found Landon Skylar Davidson guilty of trafficking in a controlled substance in the first degree. Davidson argues the Commonwealth produced insufficient evidence to overcome his entrapment defense and that he was unfairly prejudiced by the admission of his prior juvenile adjudication for selling marijuana. We hold there was sufficient evidence to find guilt but agree Davidson was unfairly prejudiced by the prosecutor inquiring into his juvenile adjudication. Hence, we reverse his conviction and remand for a new trial.
I. Facts and Procedural History
In February 2017, Davidson was recorded selling cocaine to a cooperating witness, Jonathon Nose, on three separate occasions. Subsequently, he was tried on one count of trafficking in a controlled substance. Before the presentation of proof, Davidson filed a motion in limine to exclude any reference to his 2011 juvenile adjudication. The adjudication was the result of Davidson trafficking in less than eight ounces of marijuana, a Class A misdemeanor when committed by an adult. See KRS 218A.1421(2)(a). The Commonwealth responded that it would not refer to the adjudication in its case-in-chief but would introduce it to show predisposition to commit the offense if Davidson attempted to raise an entrapment defense. The trial court held the juvenile adjudication inadmissible during the Commonwealth's case-in-chief but found it potentially admissible for impeachment purpose depending on Davidson's testimony.
Kentucky Revised Statutes.
Nose testified for the Commonwealth about his transactions with Davidson. On cross-examination, Nose was questioned about his relationship with "Sam," a drug dealer known to both Nose and Davidson. Davidson testified in his own defense and admitted to providing Nose with cocaine. However, he alleged he did so only after Nose falsely informed him he could assist him in obtaining a lucrative job installing wiring for cell phone towers. Davidson testified that he would obtain cash from Nose, use it to purchase cocaine from Sam, and then give Nose the cocaine. Davidson also introduced text messages from Nose to support these allegations. Davidson alleged he sold Nose the cocaine only because he believed it would help him obtain the wiring job. Davidson testified the police urged him to inform on "Sam" after he was arrested but he refused out of fear for his family's safety. He denied selling cocaine on any other occasion.
On cross-examination, Davidson was asked if he had ever "dealt drugs" before. Davidson initially denied doing so; therefore, the trial court permitted the Commonwealth to ask Davidson about his juvenile adjudication to show his predisposition to traffic in narcotics. The following exchange occurred:
Commonwealth: Mr. Davidson, have you ever been adjudicated before for trafficking in controlled substances?
Davidson: I'm still not sure what the term [adjudicated] is, but from my understanding the question you are asking me is if I have sold something as a juvenile?
Commonwealth: Have you sold—I'm sorry—have you been adjudicated for trafficking in controlled substances?
Davidson: No, not in a controlled substance.
Commonwealth: But—let me rephrase the question
here—but have you been adjudicated selling something the Commonwealth has designated a controlled substance?
Davidson: In my juvenile years, I'd say approximately when I was twelve, I did give a very, very, very small amount of marijuana to Joe Smith's son.
Upon further questioning, Davidson conceded he would have been fourteen at the time of his juvenile adjudication. No other details about his prior sale of marijuana were established through cross-examination.
Davidson moved for a directed verdict at the conclusion of his testimony, which was denied. During closing statements, defense counsel argued Davidson was entrapped as part of an effort to incriminate Sam. The jury was unconvinced and found Davidson guilty on one count of trafficking in a controlled substance in the first degree. He was sentenced to five years' imprisonment. On appeal, Davidson argues the trial court should have entered a directed verdict of acquittal because the Commonwealth failed to introduce sufficient evidence to overcome his entrapment defense. He also argues he was unfairly prejudiced by the introduction of his juvenile adjudication.
Davidson also argues the trial court committed reversible error by considering his motion in limine during a bench conference, with the white noise on, while the jury was still in the Courtroom. We agree with the Commonwealth that Davidson's failure to object to this procedure precludes it from appellate review. Grundy v. Commonwealth, 25 S.W.3d 76, 84 (Ky. 2000).
II. Directed Verdict
"On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). All fair and reasonable inference from the evidence must be drawn in the Commonwealth's favor, and questions as to credibility and weight to be given to witness testimony should be left to the jury. Id. Davidson was found guilty under KRS 218A.1412(1)(a), which provides that a person is guilty of trafficking in a controlled substance in the first degree when he or she "knowingly and unlawfully traffics in . . . [f]our (4) grams or more of cocaine[.]" Davidson did not deny selling more than four grams of cocaine but raised entrapment as a defense. "[W]here the government has induced an individual to break the law and the defense of entrapment is raised, the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents." Commonwealth v. Day, 983 S.W.2d 505, 508 (Ky. 1999) (citing Jacobson v. United States, 503 U.S. 540, 549, 112 S. Ct. 1535, 1540, 118 L. Ed. 2d 174 (1992)).
Davidson's entrapment defense depended on the jury believing his assertion that he sold Nose cocaine only because he believed it would help him obtain a job. Judging the credibility of witnesses is the exclusive province of the jury. Thus, the trial court did not err by denying Davidson a directed verdict for trafficking in narcotics in the first degree.
III. Juvenile Adjudication
A trial court's evidentiary rulings are reviewed for an abuse of discretion. Dunlap v. Commonwealth, 435 S.W.3d 537, 553 (Ky. 2013). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Once the entrapment defense is raised, the government may prove the defendant's predisposition to commit the criminal act by introducing evidence he or she "engaged in a course of similar crimes," was "merely afforded an opportunity to commit a preconceived plan," or demonstrated "ready compliance" to commit the crime. Wyatt v. Commonwealth, 219 S.W.3d 751, 757 (Ky. 2007). "Notwithstanding its ability to introduce past criminal conduct, the Commonwealth['s] evidence of such conduct cannot be so remote that the probative worth of the evidence is outweighed by the prejudice to the defendant." Dillman v. Commonwealth, 257 S.W.3d 126, 129 (Ky. App. 2008). The Commonwealth contends that Davidson's invocation of the entrapment defense made any prior drug conviction admissible and relevant to show predisposition.
This Court rejected a similar argument in Dillman. In that case, the appellant was tried for first-degree trafficking in a controlled substance after being recorded selling methadone tablets to a confidential informant on two separate occasions. Id. at 127. The appellant testified at trial and admitted to providing the confidential informant with methadone tablets but raised the entrapment defense by testifying he was merely a "middleman" who sold drugs "at cost" to a friend and fellow drug addict. Id. at 128. On cross-examination, the appellant testified "I don't sell drugs," explaining that he believed trafficking occurred only when the narcotics were sold for profit. Id. The Commonwealth then sought to introduce a statement he made to the police four years before his trial in which he stated he was acquiring particular drugs because he could make a three-hundred-percent profit. Id. at 129. This Court held that the appellant's entrapment defense was not, on its own, sufficient to support the introduction of the appellant's prior statement, concluding it was so remote that its probative worth was outweighed by its unfair prejudice to the defense. Id.
Davidson's juvenile adjudication was even more temporally removed from his charged offense then the appellant's statement in Dillman. The types of controlled substances involved were also different, and the jury was never informed that Davidson's juvenile adjudication related to trafficking only a misdemeanor amount of marijuana. There was no evidence the two offenses were factually similar in any way beyond the involvement of controlled substances. "Fundamental fairness requires that a jury's verdict be predicated on the particular crime charged in the indictment and not prior bad conduct dovetailed to the charged offense with the effect of emphasizing a general criminal disposition." Id. Thus, we hold that Davidson's juvenile adjudication was too dissimilar from his charge offense to show predisposition to traffic in cocaine and its prejudicial nature substantially outweighed its probative value.
We are aware that the Dillman court affirmed the trial court on the alternative theory that the appellant in that case "opened the door" for the admission of his prior statement to the police. Id. The Commonwealth does not make such an argument in this case. Even if it had, we believe this case can be factually distinguished. In Dillman, the appellant's statement to police was offered to rebut a specific statement: that he did not sell drugs for profit. Davidson denied previously selling cocaine. He did not deny providing another individual with a controlled substance at any other point in his life. The only factual assertion that Davidson's juvenile adjudication could have impeached was, at most, his response during cross-examination that he had never "dealt drugs" before. However, Davidson should never have been asked that question. Prior misdemeanors are not admissible during the guilt phase of trial to impeach a witness's general credibility. KRE 609. Nor are juvenile adjudications, even when they would have constituted a felony if committed by an adult. Manns v. Commonwealth, 80 S.W.3d 439, 446 (Ky. 2002). Cases cited by the Commonwealth permitting the introduction of juvenile adjudications during the sentencing phase are not applicable.
Kentucky Rules of Evidence.
IV. Harmless Error
RCr 9.24 provides that "[n]o error in either the admission or the exclusion of evidence . . . is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice." Under this harmless error analysis "[t]he inquiry is not simply 'whether there was enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence.'" Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed 1557 (1946)). The Commonwealth's brief did not argue that the prosecutor's inquiry into Davidson's juvenile adjudication was otherwise harmless. "It is not our function as an appellate court to research and construct a party's legal arguments, and we decline to do so here." Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005).
Kentucky Rules of Criminal Procedure. --------
The judgment and sentence of the Laurel Circuit Court is reversed because of the improper admission of Davidson's juvenile adjudication. The case is remanded to the Laurel Circuit Court for a new trial.
ALL CONCUR. BRIEF FOR APPELLANT: Jason Scott Kincer
London, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Julie Scott Jernigan
Assistant Attorney General